Parties have entitlement to a share in estate despite unprobated wills, and rejection of plaint must strictly adhere to plaint averments.

O R D E R

The Civil Revision Petition is filed challenging the order passed by the trial Court dismissing the application filed by the petitioner / 1st defendant seeking rejection of plaint.

2. The respondents 1 to 10 filed a suit for partition. The petitioner herein who is the 1st defendant in the suit filed the instant application for rejection of plaint on the ground that the respondents 1 to 10 / plaintiffs claiming right under a Will allegedly executed by one Krishnaveniammal and the said Will was not probated and therefore cause of action pleaded by the respondents fails and there is no cause of action for maintaining the suit prayer. The petition for rejection of plaint was dismissed by the Trial Court and aggrieved by the same, the petitioner is before this Court.

3. The learned counsel appearing for the petitioner submitted that sister of Krishnaveniammal namely one Babu Ammal filed a Suit in O.S. No.6037 of 1976 on the file of the learned XVII Assistant City Civil Judge, Chennai against the respondents and also the petitioner and the same is pending. It is stated that the exparte preliminary decree for partition was already filed in O.S. No.6037 of 1976 and the final decree petition is pending. The learned counsel for the petitioner submitted that the present suit property is in respect one of the portion of the suit property decreed in O.S. No.6037 of 1975 and hence the suit for partition filed by the respondents 1 to 10 in respect of the portion of the property covered by earlier preliminary decree for partition is not at all maintainable.

4. A perusal of the affidavit filed in respect of the petition to reject the plaint would suggest that the points raised by the learned counsel for the respondents was not at all raised in the affidavit. As per the averments in the affidavit filed in support of the petition, the petitioner sought for rejection of the plaint only on the ground that the respondents 1 to 10 failed to probate the Will of Krishnaveniammal relied on by him. It is not in dispute that both the petitioner and the respondents 1 to 10 are children of Krishnaveniammal. Therefore dehors the Will, the petitioner and the respondents 1 to 10 are entitled to a share in the estate of Krishnaveniammal. In such circumstances, the main ground that was projected by the petitioner in respect of the petition for rejection of plaint is not acceptable by this Court.

5. As far as the other points raised by the learned counsel for the petitioner regarding the pendency of earlier partition suit in O.S. No.6037 of 1976 is concerned, the said point was not raised in the affidavit filed in support of the petition for rejection of plaint. The learned counsel for the petitioner, by taking this Court to the counter affidavit filed in I.A. No.14157 of 2017 which was filed to set aside the exparte order passed earlier in the petition to reject the plaint, submitted that preliminary decree passed in earlier suit in O.S No.6037of 1976 was referred to in the counter affidavit.

6. It is seen from the records that I.A. No.14157 of 2017 filed to set aside the earlier exparte order passed in the petition to reject the plaint was allowed and petition to reject the plaint was taken up for re-consideration. The petitioner has not filed any additional affidavit raising the points which he raised in the counter in I.A. No.14157of 2017. Therefore, the fact remains that the petitioner failed to raise the points raised by the petitioner during the arguments by filing any affidavit in support of the petition to reject the plaint. Even otherwise whether the suit property in the present suit for partition is part of the subject matter of the earlier suit for partition, whether all the parties in the present suit were made as parties in the earlier suit etc., can be decided only by referring to the plaint in earlier suit namely O.S. No.6037 of 1976. It is settled law that while considering the application for rejection of plaint, the Court is guided by th